court orders will be applicable in similar cases - കോടതി ഉത്തരവുകൾ സമാന കേസുകൾക്കും ബാധകം എന്ന സുപ്രീം കോടതി ഉത്തരവ്

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 5966 OF 2021
(arising out of SLP (Civil) No(s). 5435 of 2020)
AJAY KUMAR SHUKLA AND OTHERS ...APPELLANT(S)
VERSUS
ARVIND RAI AND OTHERS ...RESPONDENT(S)
WITH
ASHISH KUMAR SRIVASTAVA AND OTHERS ... APPELLANT(S)
VERSUS
RAJESH KUMAR SINGH AND OTHERS ...RESPONDENT(S)
AND
MANOJ KUMAR SHUKLA AND OTHERS ... APPELLANT(S)
VERSUS
RAJESH KUMAR SINGH AND OTHERS ...RESPONDENT(S)
Digitally signed by
Sanjay Kumar
Date: 2021.12.08
13:42:41 IST
Reason:
Signature Not Verified

2
AND
CIVIL APPEAL NO(s).5968 OF 2021
MAHESH CHANDRA BADHANI AND OTHERS ... APPELLANT(S)
VERSUS
DHARMENDRA SINGH AND OTHERS ...RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. The present set of appeals preferred by the original writ
petitioners (before the High Court) assails the correctness of the
judgement and order dated 04.12.2019 passed by Division Bench
of the Allahabad High Court in Special Appeal No. 819 of 2019, in
between Rajesh Kumar Singh and Another vs. Rajeev Nain
Upadhyay and 24 Others whereby the Division Bench allowed the
appeal, set aside the judgment and order of the learned Single
Judge and dismissed the writ petition.

3
Background:
2. The appellants, who were working as Junior Engineers in the
Department of Minor Irrigation, State of Uttar Pradesh, aggrieved
by the final seniority list dated 05.03.2010 challenged the same by
way of Writ Petition No. 53123 of 2012, being Rajeev Nain
Upadhyay and Others vs. State of Uttar Pradesh and Others.
The appellants (Original Writ Petitioners) belong to the Mechanical
and Civil Streams whereas Private Respondents are from the
Agriculture Stream.
3. Originally when the petition was filed, challenge was only to
the seniority list published on 05.03.2010. However, during the
pendency of the petition by way of amendment, challenge was also
made to the earlier seniority list published on 05.09.2006. The
said amendment was allowed. Thus, the reliefs claimed post
amendment, read as follows:
“Prayer
Original prayer in the writ petition before the high court:
It is, therefore, most respectfully prayed that this Hon’ble court
may be pleased to issue:
i. A writ, order or direction in the nature of certiorari quashing the
office order dated 05.03.2010 issued by the Chief Engineer (Minor
Irrigation), U.P. Lucknow and the seniority list appended thereto
(Annexure 12 to the writ petition).

4
ii. A writ, order or direction of a suitable nature commanding the
respondents to prepare and publish a revised seniority list in
conformity with UP Government Servant Seniority Rule 1998
within a period to be specified by this Hon’ble court.
iii. A writ, order or direction of a suitable nature restraining the
respondents from taking any action on the basis of impugned office
order.
iv. A writ, order or direction in the nature of which this Hon’ble
court may deem fit and proper under the circumstances of the
case.
v. Award cost to the humble petitioner throughout of the present
writ petition.
Prayer added subsequently to the original prayer in writ petition
before the High Court:
That the following prayers may be added after prayer no (i) as
prayer no. i-a) & i-b)
i-a) Certiorari quashing for the record to quash the seniority list
dated 5.9.2006.
i·b) mandamus restraining the respondents from giving any
benefits to the respondents on the basis of the seniority list dated
5.9.2006.”
4. The learned Single Judge, vide judgement and order dated
14.05.2019, allowed the writ petition, quashed the seniority lists
dated 05.09.2006 and 05.03.2010 and further issued a writ of
mandamus directing the respondents to draw a fresh seniority list
in accordance with Rule 5 of the Uttar Pradesh Government
Servants Seniority Rules, 1991 (for short “Rules 1991”). It was
also provided that any promotions made during the pendency of
the writ petitions would not be interfered with but would remain
subject to the fresh seniority list to be prepared in accordance with

5
Rule 5 of Rules 1991. Learned Single Judge recorded the following
findings to arrive at the above conclusions:
a) After examining the relevant rules and also the scheme of
determination of the seniority, it was recorded that the existing
seniority list would not only be prejudicial to the interest of
junior engineers belonging to civil and mechanical branch but
would also affect their chances of promotion. It would also be
generating heart burn, adversely affecting the administration
and working of the entire department. Paragraph 21 of the
judgment of learned Single Judge is reproduced below:
“21. The scenario noticed above would not only be
prejudicial to the interests of Junior Engineers
belonging to Civil· and Mechanical Engineering Stream
as it would affect their chances of promotion and
generate heart-burning but would adversely affect the
requirement of work to be managed by the department
also.”
b) The objection taken by the respondents to the original writ
petition regarding the petition suffering from delay and laches,
was elaborately dealt with. The law on the point was dealt with
in abundance and thereafter it was recorded that a delay of
three to four years, in a matter relating to seniority dispute
would not be fatal. Reliance was placed upon the judgment of

6
Shiba Shankar Mohapatra vs. State of Orissa1. It was held
that in the present case, there was no delay or laches.
c) It was also recorded that once there was a serious
challenge to the determination of seniority on the ground that
the seniority list had been prepared de hors the rules, writ
petition was required to be considered on merits.
d) Three different lists were forwarded by the Commission
relating to the same selection and therefore, a common inter se
merit of the candidates from the three lists ought to have been
prepared and accordingly seniority ought to have been fixed.
e) The Competent Authority and the State committed a serious
error of law in determining the seniority list merely on the basis
of the date of receipt of the three select lists arising out of the
same selection. Such an action could neither be supported in
law or on facts nor the task of determining seniority be left to
such a fortuitous circumstance.
f) The date of dispatch of select list, by no stretch of imagination
could be a determining factor for preparing the seniority list.
1
(2010) 12 SCC 471

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The Competent Authority and the State have acted contrary to
the specific provisions contained in Rules 1991. As such their
action is arbitrary and also against the constitutional spirit of
equal opportunity in matters of public employment.
5. The judgment of the learned Single Judge was assailed by
way of intra court appeal registered as Special Appeal No. 819 of
2019. The Division Bench, vide judgment and order dated
04.12.2019, allowed the appeal, set aside the judgment of the
learned Single Judge and dismissed the writ petition. This
judgment has given rise to the present set of appeals. The Division
Bench recorded the following findings to arrive at the above
conclusions:
a) There was extraordinary delay on the part of the original writ
petitioners in approaching the Court inasmuch as the seniority
list of 2006 which had formed the basis of the 2009 seniority
list, was not challenged within a reasonable time.
b) The original writ petitioners having not challenged the final
seniority list dated 05.09.2006 principally accepted the same as
such their claim would be barred by principle of acquiescence.

8
c) All the affected Junior Engineers having not been impleaded
would be fatal on the principle of non-joinder of necessary
parties.
d) The appellants having participated in selection/appointment
process, later on, cannot challenge the process as such action
would be hit by doctrine of estoppel and acquiescence.
e) The learned Single Judge was not right in directing for
preparation of the seniority list in accordance with Rule 5 of
Rules 1991 as it would be Rule 8 which would be applicable and
not Rule 5.
Facts:
6. The factual matrix relevant for adjudication of this set of
appeals are:
a) The Chief Engineer, Department of Minor Irrigation send a
requisition dated 18.06.1998 to the Uttar Pradesh Public
Service Commission (for short “the Commission”) requesting for
recruitment of 206 posts of Junior Engineers in the Department
of Minor Irrigation. These posts were further divided inter se

9
between agriculture, mechanical and civil streams in the ratio
of 50:30:20 respectively.
b) The Commission issued an Advertisement No. 3 of 1998-
1999, inviting applications for the post of Junior Engineers. The
examination process was in two tiers; a screening test which
was held on 18.10.1998 and after qualifying this screening test,
there was an interview to be conducted by the Commission. The
result of the screening test was declared on 06.01.1999 and
thereafter, interviews were conducted by the Commission from
07.06.1999 to 26.06.1999 with respect to candidates who were
holding a Diploma in Agricultural Engineering. Insofar as
candidates holding Diploma in Mechanical Engineering were
concerned, their interviews were held between 24.06.1999 to
02.07.1999 and lastly for candidates holding Diploma in Civil
Engineering, their interviews were held between 07.07.1999 to
22.12.1999. After finalising the results, the Commission
forwarded three separate select lists to the Minor Irrigation
Department of the State Government, as follows:
i) On 28.09.1999, the select list of candidates pertaining to
Agricultural Engineering;

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ii) On 06.01.2000, the select list of candidates pertaining to
Mechanical Engineering and,
iii) Lastly on 07.11.2000, the select list of candidates
pertaining to Civil Engineering.
Note: There is some discrepancy regarding the dates of the three
lists being forwarded to the department. The Commission, in
its affidavits filed, has given different dates. However, the fact
remains that the sequence of sending the lists of three different
streams remains the same i.e. Agriculture, Mechanical and Civil
in that order. In one of the affidavits, the three dates are
06.01.2000, 27.01.2000 and 07.11.2000 for Agriculture,
Mechanical and Civil Junior Engineers. In another affidavit it
is 28.09.1999, 06.01.2000 and 07.11.2000 in the same order.
Hereinafter we have dealt these dates as 28.09.1999,
06.01.2000 and 07.11.2000 respectively.
c) Based upon the above three select lists forwarded by the
Commission, appointment letters were issued on 08.10.2001.
The appointment letter clearly indicated that the issue regarding
seniority would be decided later on. Pursuant to the

11
appointment letters dated 08.10.2001, the petitioner and
private respondents joined.
d) In 2006, a tentative seniority list was published vide office
order dated 17.03.2006 with respect to all the Junior Engineers
appointed after 01.01.1989. Later on, vide office order dated
05.09.2006, a final seniority list was published. The last
sentence of the said office order reads that the seniority of the
candidates selected by the Commission has been kept in their
serial of merit.
e) The department took a fresh exercise of preparing the
seniority list in 2009 as for the first time Rules relating to Junior
Engineers of the Minor Irrigation Department were framed.
Reference to these Rules would be made a little later.
f) Accordingly, a provisional seniority list was published vide
office order dated 29.12.2009 inviting objections. The
objections received were considered and vide office order
dated 05.03.2010, a final seniority list was published. In the
latter part of paragraph 11 of the office order dated
05.03.2010, reference was made that the Commission had
sent three separate lists i.e. of Agricultural stream on

12
28.09.1999, Mechanical stream on 06.01.2000 and Civil
stream on 07.11.2000. The department had placed the
candidates of the three lists in the same sequence as they
were received with their inter se seniority in their respective
lists. For example, if there were 30 candidates in the
Agricultural stream, all those candidates were placed on top
at serial nos. 1 to 30 in the same order as it was received, if
20 candidates were in the Mechanical list then they were
placed en bloc in the same serial as received from the
Commission from serial nos. 31 to 50 and, if there were 50
in the Civil stream, they were placed below Mechanical with
serial numbers 51 to 100 again in the same sequence as
forwarded by the Commission.
g) The appellants came to know of this mode of preparation of
the seniority list only after the publication of the final list on
05.03.2010 as prior to it they were under the bona fide belief
that department had prepared seniority list inter se between all
three streams as per the selection and result conveyed by the
Commission. They were thus compelled to make
representations to correct the seniority list by considering the
inter se merit of all the three streams i.e. Agricultural,

13
Mechanical and Civil on the basis of the marks obtained in their
examinations and forwarded by the Commission rather than
preparing the seniority list in the order of receipt of the select
list of the three streams. When no heed was paid to their
representations, the appellants approached the High Court by
way of Writ Petition No. 53123 of 2012.
h) As already recorded above, the Single Judge allowed the writ
petition whereas the Division Bench dismissed the writ petition
giving rise to the present set of appeals.
Statutory Provisions: Rules
7. Before we proceed further, a broad outline of the relevant
rules applicable for preparation of seniority may be referred to.
First and foremost and most relevant is Rules 1991 framed under
Article 309 of the Constitution. This was in existence at the time
when the selection of the appellants and respondents was made in
1998-1999. Part II of the said Rules deals with the determination
of the seniority. Rule 5 thereof provides for seniority where
appointments are made only by direct recruitment. The said Rule
is reproduced hereunder:

14
“5. Seniority where appointments by direct recruitment
only. - Where according to the service rules appointments
are to be made only by the direct recruitment the
seniority inter se of the persons appointed on the result
of any one selection, shall be the same as it is shown in
the merit list prepared by the Commission or the
Committee, as the case may be :
Provided that a candidate recruited directly may lose his
seniority, if he fails to join without valid reasons when
vacancy is offered to him, the decision of the appointing
authority as to the validity of reasons, shall be final :
Provided further that the persons appointed on the result
of a subsequent selection shall be junior to the persons
appointed on the result of a previous selection.
Explanation. - Where in the same year, separate
selections for regular and emergency recruitment, are
made, the selection for regular recruitment shall be
deemed to be the previous selection.”
8. A plain reading of the above provision stipulates that inter se
seniority of the persons appointed as a result of ONE SELECTION
would be on the basis of the merit list prepared by the Commission
or the Committee, as the case may be. The Commission means
the Uttar Pradesh Public Service Commission and the Committee
means the Committee constituted to make selections for
appointment. In the present case, it was the Commission which
had made the selections.
9. Rule 8 of Rules 1991 provides for preparation of seniority list
where appointments were made both by promotion and direct
recruitment. The said Rule reads as under:

15
“8. Seniority where appointments by promotion and
direct recruitment. - (1) Where according to the service
rules appointments are made both by promotion and by
direct recruitment, the seniority of persons appointed
shall, subject to the provisions of the following sub-rules,
be determined from the date of the order of their
substantive appointments, and if two or more persons are
appointed together, in the order in which their names are
arranged in the appointment order:
Provided that if the appointment order specifies a
particular back date, with effect from which a person is
substantively appointed, that date will be deemed to be
the date of order of substantive appointment and, in other
cases, it will mean of issuance of the order:
Provided further that a candidate recruited directly may
lose his seniority, if he fails to join without valid reasons,
when vacancy is offered to him the decision of the
appointing authority as to the validity of reasons, shall be
final.
(2) The seniority inter se of persons appointed on
the result of any one selection-
(a) through direct recruitment, shall be the same as
it is shown in the merit list prepared by the
Commission or by the Committee, as the case
may be;
(b) by promotion, shall be as determined in accordance
with the principles laid down in Rule 6 or Rule 7, as
the case may be, according as the promotion are to be
made from a single feeding cadre or several feeding
cadres.
(3) Where appointments are made both by promotion and
direct recruitment on the result of any one selection the
seniority of promotees vis-a-vis direct recruits shall be
determined in a cyclic order (the first being a promotee) so
far as may be, in accordance with the quota prescribed
for the two sources.

16
Illustrations
(1) Where the quota of promotees and direct recruits is in
the proportion of 1 : 1 the seniority shall be in the
following order-
First ... Promotee
Second ... Direct
recruits
and so on.
(2) Where the said quota is in the proportion of 1 : 3 the
seniority shall be in the following order-
First ... Promotee
Second
to
Fourth
... Direct
recruits
Fifth ... Promotee
Sixth
to
eight
... Direct
recruits
and so on:
Provided that-
(i) where appointment from any source are made in excess
of the prescribed quota, the persons appointed in excess
of quota shall be pushed down, for seniority, to
subsequent year or years in which there are vacancies in
accordance with the quota;
(ii) where appointments from any source fall short of the
prescribed quota and appointment against such unfilled
vacancies are made in subsequent year or years, the
persons so appointed shall not get seniority of any earlier
year but shall get the seniority of the year in which their
appointments, are made, so however, that their names
shall be placed at the top followed by the names, in the
cyclic order of the other appointees;
(iii) where, in accordance with the service rules the
unfilled vacancies from any source could, in the
circumstances mentioned in the relevant service rules be
filled from the other source and appointment in excess of
quota are so made, the persons so appointed shall get the
seniority of that very year as if they are appointed against
the vacancies of their quota.”

17
10. The above Rule is pressed into service where a combined list
of direct recruits and promotees is to be prepared. However, even
this Rule clearly provides in sub-Rule 2(a) that the seniority inter
se of persons appointed on the result of any ONE SELECTION
through direct recruitment shall be the same as it is shown in the
merit list prepared by the Commission or by the Committee, as the
case may be. The language used and the manner provided is
identical to Rule 5 where only seniority list of direct recruits is dealt
with.
11. Part III of Rules 1991 deals with the preparation of seniority
list. According to Rule 9, as soon as after the appointments are
made, the appointing authority shall prepare a tentative seniority
list, the same would be circulated amongst the persons concerned
inviting objections. The appointing authority, after disposing of the
objections, would prepare final seniority list. Rule 9 is reproduced
hereunder:
“9. Preparation of seniority list. –
(1) As soon as may be after appointments are made to a
service, the appointing authority shall prepare a
tentative seniority list of the persons appointed
substantively to the service in accordance with the
provisions of these rules.

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(2) The tentative seniority list shall be circulated amongst
the persons concerned inviting objections by a notice
of reasonable period, which shall not be less than
seven days from the date of circulation of the tentative
seniority
(3) No objections against the vires or validity of these
rules shall be entertainable.
(4) The appointing authority shall after disposing off the
objection, by a reasoned order, issue a final seniority
list.
(5) It shall not be necessary to prepare a seniority list of
the cadre to which appointments are made only by
promotion from a single feedings cadre.”
12. In the year 2009, the Uttar Pradesh Minor Irrigation
Department Subordinate Engineering Service Rules, 2009 (for
short “Rules 2009”) came into force on 16.10.2009 again framed
under Article 309 of the Constitution. Part V of Rules 2009
provided for the procedure for recruitment which comprised of
Rules 14 to 17. Rule 15(4) provided that the Commission would
prepare a list of candidates in order of their proficiency as
disclosed by the aggregate of marks obtained by each candidate in
the written examination as well as interview and accordingly
recommend such number of candidates as they consider fit for
appointment. After preparation of the said list, the Commission
would forward it to the Appointing Authority. Sub-Rule (5) of the

19
Rule 15 further provides that if recruitment was being made for
more than one branch of Engineering then in such case, the
Commission would prepare a combined select list of candidates in
order of their proficiency as disclosed by the aggregate of marks
obtained by the candidates in the written examination and
interviews accordingly and shall also forward the same list to the
Appointing Authority in addition to the list forwarded under Rule
15(4). Rules 14-17 of Rules 2009 are reproduced below: -
“Rule 14 Determination of vacancies
The appointing authority shall determine and intimate to the
Commission the number of vacancies to be filled during the
course of the year of recruitment as also the number of
vacancies to be reserved for candidates belonging to the
Scheduled Castes, Scheduled Tribes and other categories
under rule 6.
Rule 15 Procedure for Direct Recruitment
(1) Applications for permission to appear in the competitive
exam shall be called by the Commission in the prescribed form
published in the advertisement issued by the Commission.
(2) No candidate shall be admitted to the examination unless
he holds a certificate of admission, issued by the Commission.
(3) After the results of the written examination have been
received and tabulated, the Commission shall, having regard
to the need for securing due representation of the candidates
belonging to the Scheduled Castes, Scheduled Tribes and
other categories in accordance with rule 6, summon for
interview such number of candidates as have come up to
standard fixed by the Commission in this respect. The marks
awarded to each candidate at the interview shall be added to
the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order
of their proficiency as disclosed by the aggregate of marks
obtained by each candidate at the written examinations and

20
interview and recommend such number of candidates as they
consider fit for appointment. If two or more candidates obtain
equal marks in the aggregate, the name of the candidate
obtaining higher marks in the written examinations shall be
placed higher in the list. If two or more Candidates obtain
equal marks in the written examination also, the name of the
candidate a senior in age shall be placed higher in the list. The
Commission shall forward the list to the appointing authority.
(5) If the recruitment is being made in more than one branch
of Engineering as specified in clause (1) of rule 5, then in such
the Commission shall also prepare a combined list of
candidates in order of the proficiency as disclosed by the
aggregate of marks obtained by each candidate in written
examination and interview and shall also forward the same to
the appointing authority along with the list under sub rule (4)
Rule 16 Procedure for recruitment by promotion
Recruitment by promotion shall be made on the basis of
seniority subject to the rejection of unfit in accordance with
the Uttar Pradesh Promotion by Selection in Consultation with
the Public Service Commission (Procedure) Rules, 1970, as
amended from time to time.
Rule 17 Combined Select list
If, in any year of recruitment, appointments are made both by
direct recruitment and by promotion, a combined select list
shall be prepared by taking the names of the candidates from
the relevant lists, in such manner that prescribed percentage
is maintained, the first name in the list being of the person
appointed by promotion.”Rule 21 Seniority
Seniority of the persons substantively appointed in any
category of posts in the service shall be determined in
accordance with the Uttar Pradesh Government Servants
Seniority Rules 1991, as amended from time to time.
13. Apart from the above, Rule 21 thereof clearly provided that
the seniority of all persons substantively appointed shall be
determined as per Rules 1991. Another relevant aspect of the said
Rules 2009 was that all the three branches i.e. Agriculture, Civil

21
and Mechanical would together constitute one cadre of
Subordinate Engineering Service. Rule 21 is reproduced
hereunder:
Rule 21 Seniority
Seniority of the persons substantively appointed in any
category of posts in the service shall be determined in
accordance with the Uttar Pradesh Government Servants
Seniority Rules 1991, as amended from time to time.
14. Before Rules 2009 of the Minor Irrigation Department, there
was another set of Rules framed in 1991 called the Uttar Pradesh
Engineering Service (Minor Irrigation Department) Rules,
1991. These Rules dealt with the recruitment of Assistant,
Executive, Superintendent and Chief Engineer of the department
but not of Junior Engineer. As reference to these Rules has been
made in the petition they have been mentioned, but may not be of
much relevance.
15. On behalf of the appellants Shri Siddarth Dave, learned
senior counsel and Ms Preetika Dwivedi, learned counsel have
made submissions. On behalf of the private respondents Shri
Gopal Sankaranarayanan, learned senior counsel and Shri Rohit
Sthalekar, learned counsel have addressed the Court. Learned

22
counsel for the State of Uttar Pradesh and learned counsel for the
Commission have also made their respective submissions.
Appellants’ case:
16. On behalf of the appellants, broadly the submissions made
are given below:
a) There is no delay on the part of the appellants in approaching
the Court, as they learnt for the first time in 2010 when the
final seniority list was published on 05.03.2010 that there
were three separate select lists forwarded by the Commission
and based upon the date of the receipt of such select list, the
seniority list has been prepared, which was contrary to the
statutory rules.
b) As the challenge was to the decision-making process in making
the seniority list contrary to the 1991 Seniority Rules and
Rules 2009, it was submitted that it was not necessary to
implead all the affected Engineers. In fact 18 of such affected
Engineers were already impleaded in the writ petition and
therefore, for all the affected Junior Engineers, their interests
were already represented.

23
c) The second seniority list of 2009-2010 had to be prepared as
Rules 2009 had come into force which required drawing up of
a fresh seniority list. A fresh seniority list having been
published, the earlier seniority list would lose its significance.
The challenge to the subsequent seniority list was within
reasonable period. As such, the plea of delay raised by the
respondents, would not have any substance.
Respondents’ Case:
17. On behalf of the respondents, the submission of learned
counsel are:
(a) that the original writ petitioners i.e. appellants had approached
the Court with extraordinary delay and therefore, their claim was
not entitled to be entertained and the Division Bench of the High
Court rightly upheld the said submission.
(b) they sought to justify the judgment of the Division Bench for
the same reasons as recorded by the Division Bench;
(c) on merits it is submitted that the seniority list had been
prepared in accordance with Rules 1991 and Rules 2009.

24
(d) there is no violation of any statutory provision in preparation of
the seniority lists either of 2006 or 2010.
Discussion:
18. It is an admitted position that there was one selection for the
three streams i.e. Agricultural, Mechanical and Civil. It is also an
admitted fact that there is one cadre of Junior Engineers in the
Minor Irrigation Department and therefore, there has to be one
seniority list of Junior Engineers. The written examination
conducted by the Commission comprised of two papers, one
compulsory for all streams and the second paper of the specific
stream of Engineering whether Agricultural, Mechanical or Civil.
So, in effect, there was one examination. Thereafter, interviews
were conducted. The Commission, in its affidavits dated
07.04.2019 and 13.05.2019 filed before the High Court, had
clearly stated that there was one selection for one examination.
However, on account of some litigation and stay granted by the
High Court the list of the stream of the Civil Engineering was sent
much later after about 10 to 11 months. Commission also
admitted in its supplementary counter affidavit before the High
Court that it had not prepared a combined merit list of all the three

25
streams but had left it for the Appointing Authority to prepare the
same. For sake of accuracy, paragraphs 6, 8, 9 and 10 of the
supplementary counter affidavit dated 07.04.2019 filed on behalf
of the Commission are reproduced below:
“6. That it is noteworthy to state that during the
selection process against the vacancies available in the
Civil Branch, stay order dated 01.03.2000 was passed
by the Lucknow bench of this Hon'ble Court in a writ
petition no. l066 of 2000, Siyaram and others versus
State of U.P. and others and therefore in compliance of
order dated 01.03.2000, recommendation was (sent to
the department at a belated stage i.e. on 07 .11.2000.
xxx xxx xxx
8. That since the required educational qualification was
different for all three branches, therefore the
recruitment was done separately and thereafter the
lists/recommendations were sent separately to the
department in respect of selected candidates.
9. That it is further submitted that recruitment on the
post of junior engineer is done from two main sources
i.e. direct recruitment and departmental promotion
therefore the inter-se seniority list shall be finalized in
accordance with rule 8 of U.P. Government Servant
Seniority Rules 1991. Therefore, the seniority list of the
petitioners shall be finalized by the minor irrigation
department only and there is no role of the answering
respondent in preparation of seniority list by the minor
irrigation department.
10. That it is further submitted that the preparation and
publication of the seniority list of the junior engineers
is the job of the concerned department and if any
discrepancy occurs, the concerned department can
clarify the same.”

26
19. Further paragraphs 3 to 7 of the second supplementary
counter affidavit dated 13.05.2019 filed by the Commission read as
under:
“3. That it may be submitted before this Hon’ble Court that on
the basis of requisition for recruitment of junior engineers for
three branches i.e. Agriculture, civil and Mechanical in ratio of
50:30:20, made by the minor irrigation department, the
answering respondent issued advertisement No. 3/1998-99,
whereby applications were invited from those candidates having
requisite qualification in the relevant trade.
4. That it is categorically mentioned that the process of ‘election
for all the three trades i.e. Civil, Mechanical and Agricultural
was the same. There was a screening test conducted on 18. 10.
1998 and thereafter the qualified candidates were called for
interview as per the rules and regulations.
5. That for the candidates who were called for interview in
respect of Agriculture, Civil and Mechanical branch; the
recruitment process was proceeded with, an interview was
conducted respectively and out of said three1 branches,
candidates were selected against the vacancies which were
available in Agricultural and Mechanical Branch and select lists
were sent to the department on 28.09. 1999 and 06.01.2000
respectively.
6. That it is noteworthy that during the selection process
against the vacancies available in the Civil Branch, stay order
date 1.03.2000 was passed by the Lucknow bench of this
Hon’ble Court in Writ Petition no. l066 of 2000, Siyaram and
others versus State of U.P. and others and therefore in
compliance of order -dated 01.03.2000 recommendation was
sent to the department at a belated stage i.e. on 07.11.2000.
7.That further, the Commission has been able to trace the
records of the selection process for all three branches i.e.
Original Mark Sheet, Merit list etc. and the Commission is in a
position to produce the same before the Hon’ble Court, as and
when directed.”

27
20. The Appointing Authority, in fact, committed an error in the
manner in which the seniority list was prepared by placing the
three select lists forwarded by the Commission on different dates
one after the other en bloc as per the date of receipt of three select
lists. It is not the case either of the private respondents, State or
the Commission that appointment letters have been issued
separately as and when the select lists were received. In fact, the
appointment letters of all the three streams were issued in October
2001, after about 10 to 11 months of the receipt of the third list
i.e. of the Civil stream in November 2000. Apparently by an
oversight, the Appointing Authority failed to prepare the combined
seniority list as required under 1991 Seniority Rules, be it Rule 5
or Rule 8 with respect to the selection of the appellants and
private-respondents.
21. We may now discuss the law on the point regarding delay in
approaching the court and in particular challenge to a seniority
list. The learned Single Judge had placed reliance on a judgment
of this Court in the case of Shiba Shankar Mohapatra vs. State
of Orissa (supra). Dr. B.S. Chauhan, J., after considering the

28
question of entertaining the petition despite long standing
seniority filed at a belated stage discussed more than a dozen cases
on the point including Constitution Bench judgments and
ultimately in paragraph 30 observed that a seniority list which
remains in existence for more than three to four years
unchallenged should not be disturbed. It is also recorded in
paragraph 30 that in case someone agitates the issue of seniority
beyond period of three to four years he has to explain the delay
and laches in approaching the adjudicatory forum by furnishing
satisfactory explanation. Paragraph 30 is reproduced below: -
“30. Thus in view of the above, the settled legal
proposition that emerges is that once the seniority had
been fixed and it remains in existence for a reasonable
period, any challenge to the same should not be
entertained. In K.R. Mudgal, this Court has laid down,
in crystal clear words that a seniority list which remains
in existence for 3 to 4 years unchallenged, should not
be disturbed. Thus, 3-4 years is a reasonable period for
challenging the seniority and in case someone agitates
the issue of seniority beyond this period, he has to
explain the delay and laches in approaching the
adjudicatory forum, by furnishing satisfactory
explanation.”
22. On the other hand, the Division Bench while shutting out the
appellants on the ground of delay relied upon following judgments
of this Court.

29
• Dayaram Asanand Gursahani vs. State of
Maharashtra and others2
• B.S. Bajwa and another vs. State of Punjab and
others3
• Malcom Lawrence Cecil D’Souza vs. Union of India
and others4
• R.S. Makashi and others vs. I.M. Menon and others5
23. In the case of Dayaram Asanand Gursahani (supra), there
was a delay of 9 years. In the case of B.S. Bajwa (supra), there was
a delay of more than a decade. In Malcom Lawrence Cecil
D’Souza(supra), the delay was of 15 years and in R.S.
Makashi(supra) there was a delay of 8 years. In all these cases,
this court has recorded that the delay has not been explained.
Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which
has laid down that, three to four years would be a reasonable
period to challenge a seniority list and also that any challenge
2
(1984) 3 SCC 36
3
(1998) 2 SCC 523
4
(1976) 1 SCC 599
5
(1982) 1 SCC 379

30
beyond the aforesaid period would require satisfactory
explanation.
24. In view of the above legal proposition, we now examine the
facts of the present case, firstly, as to whether there was delay of
more than three to four years and secondly, if there was delay of
more than three to four years, whether the same has been
satisfactorily explained.
25. In October, 2001, when the appointment letters were issued
it carried a stipulation that the seniority would be determined later
on as per rules. It is an admitted position that before 2006, the
seniority list of the appellants was not notified. In March, 2006,
when the tentative list was published, it did not mention about the
three select lists nor was this fact mentioned when the final
seniority list was published on 05.09.2006. Rather, it clearly
mentioned that the seniority list had been prepared on the basis
of merit. This was in fact an incorrect statement. The seniority list
had not been prepared on the basis of merit but on the basis of
receipt of the three separate select lists one after the other. As the
Agricultural list was received first on 28.09.1999, all the selected

31
candidates of agricultural stream were en bloc placed on the top,
thereafter the Mechanical list was received on 06.01.2000, they
were placed below the Agricultural stream and lastly, the Civil
stream list was received on 07.11.2000, they were placed at the
end.
26. Rules 5 and 8 of Rules 1991 clearly mention that there shall
be one list for one selection of direct recruits. Creating three
separate lists for one selection was contrary to the provisions
contained in Rules 5 and 8 of Rules 1991. Rules 2009 clearly
mention that seniority would be determined and prepared as per
1991 Rules. Rule 5 of Rules 1991, dealt with the selections made
only through direct recruitment whereas Rule 8 thereof dealt with
the situation where seniority list is to be prepared of both the direct
recruits and the promotees. However, the principles underlined in
both these Rules are the same that there has to be one list for one
selection, as is clear from Rule 8(2)(a) and Rule 5 of Rules 1991.
27. Once it is established that the seniority list was prepared in
contravention to the statutory provisions laid down in Rules 1991,
the seniority list could be interfered with. The Appointing Authority

32
would be bound by the statutory rules and any violation or
disregard to the statutory rules would vitiate the seniority list. The
same would be arbitrary, de hors the rules and in conflict with
Articles 14 and 16 of the Constitution. The only exception to the
above would be where there is unreasonable delay which is
unexplained.
28. In the present case, if we accept the submission of the
appellants then the delay at best could be a few months or a year
however, if we accept the contentions of the private respondents
then the delay could be of five years. In the first contingency, no
explanation would be required. However, in the second
contingency, if the appellants are successful in satisfactorily
explaining the delay, then even this hurdle could be overcome. In
the facts of the present case what we find from the final seniority
list of 05.09.2006 is that it nowhere mentioned that there were
three separate lists of separate streams and that they were received
on different dates. On the contrary, there was a recital therein and
specific averment to the effect that the list had been prepared on
the basis of merit. Thus, it cannot be said that the appellants were
aware of the three separate select lists dispatched by the

33
Commission on three different dates at the time of publication of
final list dated 05.09.2006.
29. It would also be worthwhile to mention here that the
appellants had no occasion to know about the three separate lists
either at the time they were dispatched by the Commission or at
any time thereafter as the appointment letters of all selected
candidates of all the three streams were issued simultaneously
under Office Order dated 08.10.2001. It would also be relevant to
mention that the order finalizing the seniority list of 05.09.2006
also nowhere mentioned that three separate lists of three streams
were received from the Commission and placed en bloc as received
one after the other.
30. At the time of notifying the tentative list on 29.12.2009, it was
not stated anywhere that there were three separate lists received
on three different dates. As such it could not be alleged that the
appellants even at that stage did not file objections regarding
preparation of common seniority list. It was only when the final
seniority list was published on 05.03.2010 and in the order
finalizing the list, it was mentioned by the department that there

34
were three separate lists received on three separate dates and in
that sequence the combined seniority was prepared. Thus, it is for
the first-time that appellants came to know of the error on
publication of the final seniority list on 05.03.2010.
31. The respondents have not been able to show any material
which could clearly indicate that the appellants had knowledge of
three separate lists and the preparation of the seniority list on its
basis. A frail attempt has been made by the respondents referring
to office order dated 17.03.2006 Annexure-P-30 to the Appeal @
SLP(C) No.5435 of 2020 which is the order notifying the tentative
seniority list. Paragraph 3 thereof mentions that the sequence
whereunder the selection list of Junior Engineers selected by the
Commission has been received, the seniority has been given in that
sequence. Paragraph 3 reads as under:
“3: The sequence, where under the selection list of the
Junior Engineers selected by the Commission has been
received, in that sequence, the Seniority has been given
in accordance with Seniority detailed therein.”
32. A reading of the above paragraph does not refer to any details
either of any stream, the year of selection, the selection being made
on the basis of which advertisement or the dates on which separate

35
lists were received. It is a general statement. This submission of
the respondents stands completely diluted in view of the facts
recorded in paragraph 5 and last sentence as contained in
paragraph 25 of the same office order dated 05.09.2006. We will
analyse the same but before that they are reproduced hereunder:
“5. Shri Vinod Kumar Singh has requested to enter his
Name in the Seniority List and requested to grant
Seniority in ratio of 50:30:20 to the Agriculture/
Mechanical/ Civil Engineering. In this regard, it is clear
that the above ratio is only for recruitment. From
Commission, on 6.01.2000, on 27.01.2000 and on
07.11.2000 list was sent. Therefore, in this sequence,
on the basis of merit, the Seniority has already been
assessed. Name of Shri Vinay Kumar has been entered
at the required place in the Seniority List as his Name
was left to be entered therein and as requested to
increase and enter his Name in this Seniority List.
xxx xxx xxx xxx xxx
25. “...The Seniority of the candidates selected from the
Public Service Commission have been kept in their
Serial of merit.”
33. Reading of paragraph 5, it is again mentioned that three lists
were received by the Commission and in that sequence, on the
basis of merit, the seniority has been assessed. Paragraph 5 was
dealing with objection of one Vinod Kumar Singh requesting to
enter his name in the seniority list and further requesting to grant
seniority in the ratio of 50:30:20. The competent authority allowed

36
the request finding that the name of Vinod Kumar Singh was left
to be entered and accordingly it was incorporated at the required
place. Further, the last sentence of this office order clearly
mentions that the seniority of the candidates selected from the
Commission has been kept in their serial of merit. It does not refer
to any separate merit being considered for preparing the seniority
list of the three separate streams.
34. After coming of Rules 2009, fresh exercise was undertaken
for preparation of seniority list. A tentative list was notified by the
Office Order dated 29.12.2009. This Office Order mentions that
the seniority list has to be prepared according to 1991 Rules. While
dealing with the finalization of this tentative list, vide office order
dated 05.03.2010, we find reference to disposal of an objection by
Mahesh Chand Bagani and Mahesh Kumar in which they had
apparently sought clarification regarding the requisition send to
the Commission and other related aspects. In paragraph 11 of the
Office Order, it is mentioned that the Commission had forwarded
the three lists of the Agriculture, Mechanical and Civil streams
separately on 06.01.2000, 27.01.2000 and 07.11.2000
respectively. It further mentioned that it was in that sequence i.e.

37
the date of receiving that the combined seniority was assessed.
Thus, again the seniority list was finalized in the same sequence
as the three lists have been received and in that order. It is
thereafter that the representations were made that the seniority
list of the direct recruits of 2001 was wrongly prepared contrary to
the Rules, however, when no action was taken, Rajiv Nain
Upadhyay and fourteen others approached the High Court by way
of W.P. No.53123 of 2012 in October 2012 which was within a
period of two to two and half years and till such time they had been
pursuing their representation after office order dated 05.03.2010.
From the above facts, it is clear that in the first contingency or in
the second contingency, the appellants cannot be found at fault.
The Division Bench committed an error in holding that the claim
lodged by the appellant suffered from delay and laches.
35. The plea to defend the seniority list prepared contrary to the
statutory provisions on the ground of delay would be a difficult
proposition. Apart from the submission of the appellants that there
is no delay as they came to know of the three separate lists only in
March, 2010, even if it is assumed that there was some delay and
a fresh seniority list was being prepared in 2009-2010 again

38
contrary to the provisions of statutory rules, such seniority list
cannot be sustained or defended on the ground of delay of five
years.
36. It is also admitted by the parties that the next promotion of
Junior Engineers in the higher grade is to the post of Assistant
Engineer. In the cadre of Assistant Engineer, there are no separate
streams but only one cadre of Assistant Engineers. It is the
seniority list of the cadre of Junior Engineers which would be the
feeder cadre for the post of Assistant Engineers. The Junior
Engineers of Agricultural stream of the selection of the year 2001,
would have direct march over the Junior Engineers selected in the
same selection of the Mechanical and Civil streams, even though
the overall merit of some or many of Agricultural stream Junior
Engineers could be lower than some or many of the Engineers of
the Mechanical and Civil streams. The appointing authority ought
to have prepared a combined merit list based upon the
performance or the proficiency on the basis of the marks received
in the selection test as prepared by the Commission. Otherwise, it
would amount to denial of the right of consideration for promotion
to a more meritorious candidate as against a candidate having

39
lesser merit. Right to promotion is not considered to be a
fundamental right but consideration for promotion has now been
evolved as a fundamental right.
37. This Court, time and again, has laid emphasis on right to be
considered for promotion to be a fundamental right, as was held
by K. Ramaswamy, J., in the case of Director, Lift Irrigation
Corporation Ltd. and Others vs. Pravat Kiran Mohanty and
Others6 in paragraph 4 of the report which is reproduced below:
“4… There is no fundamental right to promotion, but an employee
has only right to be considered for promotion, when it arises, in
accordance with relevant rules. From this perspective in our view the
conclusion of the High Court that the gradation list prepared by the
corporation is in violation of the right of respondent/writ petitioner to
equality enshrined under Article 14 read with Article 16 of the
Constitution, and the respondent/writ petitioner was unjustly
denied of the same is obviously unjustified.”
38. A Constitution Bench in case of Ajit Singh vs. State of
Punjab7, laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies the
eligibility and the criteria for promotion but still is not considered
for promotion, then there will be clear violation of his/her’s
fundamental right. Jagannadha Rao,J. speaking for himself and
6
(1991) 2 SCC 295
7
(1999) 7 SCC 209

40
Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ.,
observed the same as follows in paragraphs 21 and 22 and 27:
“21: Articles 14 and 16(1): is right to be considered for
promotion a fundamental right
22: Article 14 and Article 16(1) are closely connected. They
deal with individual rights of the person. Article 14 demands that
the "State shall not deny to any person equality before the law or the
equal protection of the laws". Article 16(1) issues a positive command
that "there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of
Article 16 is a facet of Article 14 and that it takes its roots from Article
14. The said clause particularises the generality in Article 14 and
identifies, in a constitutional sense "equality of opportunity in
matters of employment and appointment to any office under the
State. The word "employment" being wider, there is no dispute that
it takes within its fold, the aspect of promotions to posts above the
stage of initial level of recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or who comes within the
zone of consideration, a fundamental right to be "considered" for
promotion. Equal opportunity here means the right to be "considered"
for promotion. If a person satisfies the eligibility and zone criteria but
is not considered for promotion, then there will be a clear infraction
of his fundamental right to be "considered" for promotion, which is
his personal right.
"Promotion based on equal opportunity and seniority
attached to such promotion are facets of fundamental right under
Article 16(1)
xxxx xxxx xxxx xxxx xxxx
27. In our opinion, the above view expressed in Ashok Kumar
Gupta and followed in Jagdish Lal and other cases, if it is intended
to lay down that the right guarantee to employees for being
"considered" for promotion according to relevant rules of recruitment
by promotion (i.e. whether on the basis of seniority or merit) is only
a statutory right and not a fundamental right, we cannot accept the
proposition. We have already stated earlier that the right to equal
opportunity in the matter of promotion in the sense of a right to be
"considered" for promotion is indeed a fundamental right guaranteed
under Article 16(1) and this has never been doubted in any other
case before Ashok Kumar Gupta right from 1950.”

41
39. This Court in Major General H.M. Singh, VSM vs. UOI and
Another 8 , again reiterated the legal position, i.e. right to be
considered for promotion as a fundamental right enshrined under
Article 14 and Article 16 of the Constitution of India. The relevant
extract from paragraph 28 is reproduced below:
“28. The question that arises for consideration is, whether
the non-consideration of the claim of the appellant would violate the
fundamental rights vested in him under Articles 14 and 16 of the
Constitution of India. The answer to the aforesaid query would be in
the affirmative, subject to the condition that the respondents were
desirous of filling the vacancy of Lieutenant-General, when it
became available on 1-1-2007. The factual position depicted in the
counter-affidavit reveals that the respondents indeed were desirous
of filling up the said vacancy. In the above view of the matter, if the
appellant was the senior most serving Major-General eligible for
consideration (which he undoubtedly was), he most definitely had
the fundamental right of being considered against the above
vacancy, and also the fundamental right of being promoted if he was
adjudged suitable. Failing which, he would be deprived of his
fundamental right of equality before the law, and equal protection of
the laws, extended by Article 14 of the Constitution of India. We are
of the view that it was in order to extend the benefit of the
fundamental right enshrined under Article 14 of the Constitution of
India, that he was allowed extension in service on two occasions,
firstly by the Presidential Order dated 29-2-2008, and thereafter, by
a further Presidential Order dated 30-5-2008. The above orders
clearly depict that the aforesaid extension in service was granted to
the appellant for a period of three months (and for a further period
of one month), or till the approval of the ACC, whichever is earlier.
By the aforesaid orders, the respondents desired to treat the
appellant justly, so as to enable him to acquire the honour of
promotion to the rank of Lieutenant-General (in case the
recommendation made in his favour by the Selection Board was
approved by the Appointments Committee of the Cabinet, stands
affirmed). The action of the authorities in depriving the appellant due
consideration for promotion to the rank of the Lieutenant-General
would have resulted in violation of his fundamental right under
8
(2014) 3 SCC 670

42
Article 14 of the Constitution of India. Such an action at the hands
of the respondents would unquestionably have been arbitrary.”
40. If the seniority list is allowed to be sustained then the
engineers who are more meritorious in the Mechanical and Civil
streams than the Junior Engineers of the Agricultural stream
would be deprived of their right of being considered for promotion
and in fact their right would accrue only after all the Junior
Engineers of the Agricultural stream selected in the same selection
are granted promotion. For these reasons also the seniority list in
question must go.
41. The other ground taken by the High Court for non-suiting the
appellants were that they had not impleaded all the affected Junior
Engineers. For the said proposition, the Division Bench of the High
Court has placed reliance upon judgment of this Court in the case
of Ranjan Kumar and Others vs. State of Bihar and Others9.
The above case was in respect of selection and appointment on the
ground that the same had been made only on the basis of interview
without holding any written test. The High Court had quashed
such selection and appointments even of those appointees who
9
(2014) 16 SCC 187

43
were not even parties to the petition. It was in these circumstances
that this Court held that the appointments of non-parties could
not be quashed. Facts of the said case are clearly distinguishable.
42. The Division Bench of the High Court also relied upon
another judgment of this Court in Prabodh Verma and others vs.
State of Uttar Pradesh and others10. This case again related to
challenge to appointments and in the said case there was no
impleadment even in the representative capacity. In such
circumstances, this Court said that the petition was liable to be
dismissed for non-joinder of necessary parties. In fact, this
judgment helps the appellants. Paragraph 50 thereof is reproduced
below:
“50 (1): A High Court ought not to hear and dispose of a writ petition
under Article 226 of the Constitution without the persons who
would be vitally affected by its judgment being before it as
respondents or at least some of them being before it as
respondents in a representative capacity if their number is too
large to join them as respondents individually, and, if the petitioners
refuse to so join them, the High Court ought to dismiss the petition
for non- joinder of necessary parties.”
43. The third case relied upon by the Division Bench for the above
proposition namely State of Uttaranchal vs. Madan Mohan Joshi
10
(1984) 4 SCC 251

44
and others11 was again a case where none of the affected parties
were impleaded not even in the representative capacity. In such
circumstances, this Court remanded the matter to the High Court
leaving it open to the original petitioners therein to move an
appropriate application for impleading some of the affected
teachers in their representative capacity.
44. The fourth case relied upon by Division Bench on the above
proposition is Indu Shekhar Singh and others vs. State of U.P.
and others12 . In this case also, the affected parties were not
impleaded and this Court relied upon the judgment of this Court
in Prabodh Verma (supra).
45. In the case of Tridip Kumar Dingal and others vs. State of
West Bengal and others13, C.K. Thakker, J., held that the case
falls within the ambit of non-joinder of necessary parties as none
of the 66 candidates against whom the complaint was made, were
made parties. It further held that some of the respondents should
11
(2008) 6 SCC 797
12
(2006) 8 SCC 129
13
(2009) 1 SCC 768

45
have been arrayed in representative capacity. Paragraph 41 is
reproduced below:
“41: Regarding protection granted to 66 candidates, from the record
it is clear that their names were sponsored by the employment
exchange and they were selected and appointed in 1998-1999. The
candidates who were unable to get themselves. selected and who
raised a grievance and made a complaint before the Tribunal by
filing applications ought to have joined them (selected candidates)
as respondents in the original application, which was not done. In
any case, some of them ought to have been arrayed as
respondents in a "representative capacity". That was also not
done. The Tribunal was, therefore, wholly right in holding that in
absence of selected and appointed candidates and without affording
opportunity of hearing to them, their selection could not be set aside.”
46. In the recent case of Mukul Kumar Tyagi and Ors. vs. The
State of Uttar Pradesh and Ors.,14 Ashok Bhushan, J., laid
emphasis that when there is a long list of candidates against whom
the case is proceeded, then it becomes unnecessary and irrelevant
to implead each and every candidate. If some of the candidates are
impleaded then they will be said to be representing the interest of
rest of the candidates as well. The relevant portion of paragraph
75 from the judgment is reproduced below:
“75…… We may further notice that Division Bench also noticed
the above argument of non-impleadment of all the selected
candidates in the writ petition but Division Bench has not based its
judgment on the above argument. When the inclusion in the select
list of large number of candidates is on the basis of an arbitrary or
illegal process, the aggrieved parties can complain and in such cases
necessity of impleadment of each and every person cannot be
insisted. Furthermore, when select list contained names of 2211
14
(2020) 4 SCC 86

46
candidates, it becomes unnecessary to implead every candidate in
view of the nature of the challenge, which was levelled in the writ
petition. Moreover, few selected candidates were also impleaded in
the writ petitions in representative capacity.”
47. The present case is a case of preparation of seniority list and
that too in a situation where the appellants (original writ
petitioners) did not even know the marks obtained by them or their
proficiency in the examination conducted by the Commission. The
challenge was on the ground that the Rules on the preparation of
seniority list had not been followed. There were 18 private
respondents arrayed to the writ petition. The original petitioners
could not have known who all would be affected. They had thus
broadly impleaded 18 of such Junior Engineers who could be
adversely affected. In matters relating to service jurisprudence,
time and again it has been held that it is not essential to implead
each and every one who could be affected but if a section of such
affected employees is impleaded then the interest of all is
represented and protected. In view of the above, it is well settled
that impleadment of a few of the affected employees would be
sufficient compliance of the principle of joinder of parties and they
could defend the interest of all affected persons in their
representative capacity. Non-joining of all the parties cannot be
held to be fatal.

47
48. The Division Bench has also dealt with an issue which
according to us was totally irrelevant and alien to the adjudication
of the present appeals. In paragraph 45 of the judgment of the
Division Bench there is a reference to an issue where a party takes
calculated chances of participating in selection/appointment
process and later turns around after being unsuccessful would be
hit by doctrine of estoppel. For the said proposition, the Division
Bench made detailed discussions in paragraphs 46, 47, 48 and 49
of the judgment and relied upon a number of case laws. In our
considered view, this issue was not at all relevant. The said issue
does not arise in the present case. The appellants/original writ
petitioners had never challenged the selection process. The
challenge was only to preparation of the seniority list. As such, this
discussion by the Division Bench is totally irrelevant.
49. The Division Bench further in paragraph 51 had in a
generalized and vague manner recorded that the authorities relied
upon by the learned single Judge were rendered in a different fact
situation and were not applicable. The Division Bench did not
consider the judgments relied upon by the learned Single Judge

48
but only made this passing remarks. What we find is that the
authorities relied upon by the learned Single Judge were relevant
and correctly applied.
50. Further, the Division Bench in paragraphs 51, 52, 53
proceeded to deal with the delay stating it to be 11 years, the basis
for calculation of 11 years was that the seniority list of 2006 was
challenged by way of amendment by the appellants in the year
2017 and therefore there was a delay of 11 years. This discussion
by Division Bench also cannot be sustained. The first seniority list
was prepared in 2006. It was not disclosed as to how the seniority
list has been prepared by treating the three separate lists
independently on their merits but not as a result of combined merit
of the three lists. It was only in 2010 that the appellants came to
know of the fallacy and soon thereafter they challenged the
seniority list of 2010. Even if, they did not challenge the seniority
list of 2006, 2010 seniority list could always be revisited, reviewed
and prepared afresh, if the same was quashed. The appellants
could not have been at any loss even if they had not challenged the
2006 seniority list.

49
51. The reasoning given in paragraphs 54, 55, 56 regarding issue
of single selection is also not sustainable in view of Rules 1991 as
also Rules 2009.
52. Lastly, paragraph 57 of the judgment of the Division Bench
which deals with Rule 5 and 8 of 1991 Rules, we may only reiterate
that, whether it was Rule 5 which was applicable or Rule 8 which
was applicable, the seniority inter se of direct recruits to one
selection has to be one combined list based on the performance
and the marks awarded in the examination prepared either by the
Commission or the Committee, as the case may be. True, the
learned Single Judge, in the operative portion mentioned that a
fresh seniority list be prepared in accordance with Rule 5 and
apparently did not consider the effect of Rule 8, would not vitiate
the judgment inasmuch as the basis for preparation of the
seniority list of direct recruits was the same in both the Rules. It
may be noted that there is no lis inter se between direct recruits
and promotees.
53. For all the reasons recorded above, we find that the Division
Bench fell in error in allowing the appeal and dismissing the writ

50
petition. The learned Single Judge was right in his view in setting
aside the final seniority list and directing the appointing authority
for preparation of fresh seniority list in accordance with Rules
1991, be it Rule 5 or Rule 8 thereof.
54. The appeals are, accordingly, allowed. The impugned
judgment of the Division Bench of the High Court dated
04.12.2019 is set aside and that of the Single Judge dated
14.05.2019 is maintained.
55. There shall be no order as to costs.
56. Pending application(s), if any, is/are also disposed of
accordingly.
…………..........................J.
[DR. D.Y. CHANDRACHUD]
………….........................J.
[VIKRAM NATH]
…………..........................J.
[B.V. NAGARATHNA]
NEW DELHI
DECEMBER 08, 2021.

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